Abstract
Suppose you have been in the case for a number of years, lost in the lower court, lost in the High Court and now the Supreme Court has dismissed your case too. You think the judgment is incorrect and there’s nothing more you can do legally. Can there be any hope? Yes, in India, by a rare and extraordinary law called Curative Petition. The last chance that justice will be done is by way of the Curative Petition, which is the final remedy after the review petition is rejected. The Supreme Court has devised this remedy in the landmark case of Rupa Ashok Hurra vs. Ashok Hurra (2002) to avoid a miscarriage of justice. It is not an appeal disguised, however, and it has very strict grounds, a procedure, and is not subject to any fixed statutory time period, although the Court expects it to be brought without “unreasonable delay. This article describes the easy to understand step by step process for filing Curative Petition in the Supreme Court of India with all legal authorities and case law references.
What is a Curative Petition?
After the Supreme Court of India dismisses a review petition under Article 137 of the Indian Constitution, the litigant can file a Curative Petition in the Supreme Court. It is derived from the principle that the court ought to set itself right from a grave error in order to avoid a “grave miscarriage of justice. In layman’s terms, “Normal Appeal” is a request for a higher court to review the case, while a “Review Petition” is a request to the same court to reconsider its decision. A Curative Petition takes it further than the review petition, and requests the same court to correct its own mistake after the rejection of the review petition. The concept of Curative Petition is derived from the famous decision of Rupa Ashok Hurra vs. Ashok Hurra, which held that a Curative Petition is not specifically mentioned in the Constitution, but the Supreme Court has the powers to do complete justice under Article 142 of the Constitution. If grave injustice has been committed and the principles of natural justice have been infringed upon, the Court can be no deaf ear. Hence, the Curative Petition was created as the final remedy for justice. The Supreme Court has held that Curative Petition is an extraordinary remedy and it will be entertained only in a rare rare case where there is a clear violation of natural justice or the possibility of an innocent man being punished. It’s important to keep in mind that a Curative Petition does not suspend the judgment’s execution, though it does mean that the court will consider whether to hear the case at all; usually through an in-chamber hearing, not an open court hearing.
Grounds for Filing a Curative Petition with Case Law Authorities
The Supreme Court has framed very specific conditions for the remedy of Curative Petition and it cannot be filed merely for disagreement with the judgment. The basis of these grounds was laid in Rupa Ashok Hurra vs. Ashok Hurra (2002) and their further elucidation was found in State of West Bengal vs. Committee for Protection of Democratic Rights (2010) and Mohd. Arif @ Ashfaq v. The Registrar, Supreme Court of India (2014). The first good one is justice, that is the court didn’t give you a fair chance to present your case. For instance, if no one ever heard you or if a judge had a personal bias against you or if a judge gave a court order without notice, this is the basis for it. In the case of Rupa Ashok Hurra, the petitioner had successfully contended that she was not given an opportunity to be heard before the violation of natural justice and the issuing of an order of contempt and the Supreme Court had accepted that the violation of natural justice is a proper ground for filing a Curative Petition.
The second valid reason is that the judge is lacking in jurisdiction, that is the judge that passed the judgment did not have the legal authority to hear that matter. In the case of the issue being decided by a single judge, even though there are five required to do a constitution bench decision, if the single judge has decided the issue, the issue is void; or, if the judge has retired, but is still signing the decisions, then the issue is void. In K. R. Srinivas vs R. M. Premchand, the Supreme Court explained that the question of lack of jurisdiction is the fundamental one and may be a valid reason for raising a Curative Petition. The third valid justification is miscarriage of justice to the petitioner personally, which is a very high standard to be met. There must be a serious error that has done you serious and irreparable damage personally, just because it is a legal error is not enough. For example, if someone gets convicted of murder, although it is clearly captured on CCTV, then it would count, or if a verdict is issued and an innocent person ends up being executed. In Mohd. Arif case, a convict on death row had filed a Curative Petition stating that the review petition was rejected not giving him an oral hearing, thus creating a wrongful procedure. The Supreme Court accepted this argument that Curative Petition can be filed on this ground when life and liberty is involved.
The fourth good cause is that the principle of res judicata is not applicable as it would be a palpable wrong, doing irreversible damage, if the judgment were continued. Res judicata” is the doctrine that a judgment rendered at the end of the lawsuit is final. But the Supreme Court in Rupa Ashok Hurra, has said that if it is found that the judgment is palpably wrong or the judgment will cause gross miscarriage of justice the Court can set aside the judgment. The Supreme Court in Rajendra Kumar Verma vs. State of Madhya Pradesh, however clarified that the following are not acceptable grounds for a Curative Petition: Disagreement with the judgment, Evidence brought on for the first time which could have been brought in earlier with due diligence, Procedural delays or a lawyer’s mistake (unless it is a fraud) and Re-arguing of the same points which have already been considered. If you don’t have any of the four valid reasons, your Curative Petition will be dismissed without hearing.
Who Can File a Curative Petition?
As per the guidelines given in Rupa Ashok Hurra and the Supreme Court Curative Petition Rules 2014 framed under Article 145 of the Constitution certain categories of individuals are authorized to submit a Curative Petition. The petition can be filed by any person whose review petition has been dismissed by the Supreme Court and who is aggrieved by the final judgment of the Supreme Court. In criminal cases, the convict can file the petition or in the absence of the convict, due to mental illness or physical disability, the petition can be filed by the legal heir or a close family member with the Court’s permission. A convict on death row has the right to present a Curative Petition even in death sentence cases, in Mohd. Arif, the Court has laid down that all the death sentence Curative Petitions will be heard in open court and not in-chamber, as human life is at stake. For public interest litigations, Curative Petitions are usually not permitted unless the petitioner can demonstrate that the original petitioner is suffering from some personal prejudice. The relevant law that governs the procedure is the Supreme Court Rules, 2013 (Order XL) with amendments made in the Curative Petition Rules, 2014.
Step-by-Step Procedure to File a Curative Petition
The filing of a Curative Petition is not a normal petition but has a special initial screening process to exclude frivolous petitions. The first step is to secure certified copies of all previous orders such as the final judgement of the Supreme Court, order dismissing review petition and all such interim orders. The copies of these should be taken at the Supreme Court registry and for that the court prescribed fee should be paid. In the second step, it is very important to carefully and clearly draft the Curative Petition, naming the parties, mentioning the case number of the original judgment, the case number of the review petition, the particular ground out of four valid grounds and the relief that is being sought. The petition shall further allege that no other petition in the form of a Curative Petition shall have been filed prior to the filing of the petition.
The third and most significant step is for a petition to be accompanied by a certificate issued by a Senior Advocate that the petition meets the grounds for curial jurisdiction. The Supreme Court Curative Petition Rules, 2014 requires the Senior Advocate to certify, after independent examination, that there is a genuine case of violation of natural justice or a miscarriage of justice. It is reiterated by Supreme Court in Common Cause vs Union of India that without this certificate, the petition would not have been admitted for consideration by the registry. The fourth step is that the Petition is filed at the Supreme Court registry with the required Court fees nominal at around Rs. 500 to Rs. 1,000, subject to change. Unlike normal petitions, the Curative Petition is not filed before an ordinary bench immediately, and is filed in the same court number as the original case.
The fifth step is to undergo in-chamber examination by an experienced judge. The registry will first assess the petition for compliance with all rules and to determine if the Senior Advocate certificate is attached. If satisfied, the petition is put before the same bench of judges before whom the review petition was dismissed, if they are available. They review the petition in-chamber, which is not in front of the court, and determine if there is any possible basis for the petition. The judges can say that the petition can be dismissed at this stage without giving notice to the other side,” says Rupa Ashok Hurra. The sixth step is that if there is any merit in the preliminary examination made in the chamber and at least one judge on the bench thinks that the petition is worthy to be considered, the petition is circulated to the other judges. When a majority of the judges determines that a prima facie case exists, the Curative Petition is then put on the open court docket and notice is sent to the opposing party, and both parties are heard at open court. The seventh and last step is the final hearing and judgment that the Supreme Court sits to pass after the open court hearing if, after hearing the cases, the Supreme Court finds that there really is a grave miscarriage of justice, the Supreme Court can set aside its order and issue an appropriate order. But such cases are very few and out of the 557 Curative Petitions filed in the Supreme Court, less than 0.1% have been granted.
Documents Required for Filing a Curative Petition
When filing a Curative Petition, a particular set of documents must be attached to the petition to make sure that the registry accepts the petition. The first, and most important, document is a certified copy of the last judgment obtained from the Supreme Court registry. Because a review petition is required prior to filing a Curative Petition, the second document is a certified copy of the review petition dismissal order. The third document is the draft of the Curative Petition, which is to be signed by the petitioner as well as the advocate. The fourth and most important document is the certificate from a Senior Advocate which is necessary for the petition to be accepted. The fifth document is an affidavit of petitioner which has been sworn before an oath commissioner stating the contents of the petition. The sixth document is an index of all documents in which all the annexures are organised. The 7th document is the court fee receipt as per the Supreme Court rules and 8th document is the vakalatnama, the authority of the advocate to represent the petitioner. All these papers should be neatly prepared and sent to the Supreme Court Registry in the right format.
Timelines for Filing a Curative Petition
One of the common questions pertaining to Curative Petition is the time limit for filing it and that the Supreme Court Rules do not specify a time limit in any statute. The Supreme Court, in the case of Rupa Ashok Hurra deliberately did not set any definite time-hra because a miscarriage of justice can be found at any point. The Court has established some key rules on timelines, however. The petition should be filed within a reasonable time of the dismissal of the review petition, which will vary with each case. In Sabbaraya Pillai’s case, the Supreme Court rejected a Curative Petition which was filed after a lapse of fourteen months without any justification whatsoever. Petition in death should be immediately filed preferably within the first ten days from the date of dismissal of the petition for review, because a stay of execution is not automatic. In Fearing that the death sentences were being delayed, the Court had issued the directions in Mohd. Arif case that all death penalty Curative Petitions shall be heard in a hurry. Delay and laches may be a basis for dismissing a civil claim that is filed late — that is, after six months to one year — if there is no good reason for doing so. In addition, in the case of a Curative Petition, the Limitation Act will not apply, and you will have to depend solely on the inherent powers of the Supreme Court under Article 142. The sound common sense is to not wait for a minute, and to file a Curative Petition upon the expiration of the review petition as soon as it is dismissed, even though there is no specific time limit, the Court expects issues of justice to be done in a timely manner.
Advantages and Disadvantages of a Curative Petition
There are several benefits to a litigant who has tried all other remedies and is left with no other choice but to file a Curative Petition. The remedy is the very last resort if a review petition fails and, if no Curative Petition is made, the judgment is truly final and there is no further recourse. It can avoid a final injustice, like the execution of an innocent or the loss of property through fraud or error in judgment of the court. It is also less costly than other remedies as the court fee is inexpensive and has no strict time limit so if there is a good excuse for delay then there is nothing to be lost. The Curative Petition, however, also has some drawbacks and is a very unlikely remedy. The admission rates are extremely low, less than 0.5%, and even fewer Curative Petitions for those who are admitted are successful. It needs a certificate of a Senior Advocate and Senior Advocates ask for high fees, where sometimes ranging from Rs. The amount runs from 50,000 to several lakhs of rupees and without their certificate, the petition can’t be filed at all. The judges will dismiss most petitions in-chamber, without a hearing in open court, and you will never have the chance to argue in open court unless the judges first find that there is something on paper that they want to hear you argue. No automatic stay of execution – a convict on death row can be executed without the court’s permission. Lastly, a Curative Petition cannot be used to introduce new evidence that you could have obtained earlier with “reasonable diligence.
Case Studies and Examples
The most fundamental and important case study is of Rupa Ashok Hurra vs Ashok Hurra, which laid the groundwork for the concept of Curative Petition as a remedy in law. The Supreme Court had issued a contempt order against Mrs. Rupa Hurra without affording her a due process of law. She then filed a review petition which was rejected and then made an appeal to the Supreme Court for reconsideration of the Court’s decision. The Court was aware that there was a gap in the law as no remedy was available after rejection of a review petition. Accordingly the Court exercised its inherent powers under Article 142 of the Constitution and added a new remedy to the armoury known as the Curative Petition and in the end set aside its earlier order of contempt against Mrs. Hurra. This case is used as the reference case for fixing all Curative Petitions in India.
Mohd. Arif @ Ashfaq v. The Registrar, Supreme Court of India is the second important case study. This case was pertaining to a death row convict convicted of the bomb blasts in the 2005 Delhi riots. He applied for reconsideration by circulation and the application was rejected without an oral hearing and he had filed a Curative Petition contending that in death sentence cases, the Court should hear the petitioner’s case in person before dismissing the review. His argument was accepted by the Supreme Court and it instructed that from now on, all death sentence Curative Petitions would be heard in the open court before a minimum of three judges. This case had a far-reaching impact on the procedure of capital punishment trials and had ensured that a death sentence would not be confirmed if the convict was given the last chance to be heard in person.
Conclusion
The last safety valve in the Indian judiciary is Curative Petition but it’s not a common remedy nor a club for tormented litigants. It is not available to those who are not able to prove that it has been a clear violation of natural justice, lack of jurisdiction or a grave miscarriage of justice concerning themselves. It’s a very rigorous and demanding process and before you have a chance to get an open court hearing, you must lose in a review petition, get a certificate from a Senior Advocate, then file the petition in the Supreme Court registry and then make it through in-chamber review from the same Supreme Court judges. The success percentage is very low, but when it is successful it will stop any kind of injustice from being permanent. The most important message for a typical citizen is this: don’t use a Curative Petition as a first resort for a lawsuit. Instead, exhaust all your appeals and review remedies first. Even if you still think an injustice has been done, if you’ve had your review petition rejected and you’d like to discuss this with someone, reach out to a Senior Advocate as soon as your review petition has been rejected. Recall that there is no limitation period, but the Court does expect for speediness, since justice delayed is justice denied, even at this late stage. The Curative Petition stands as a rare but powerful reminder that no court is too high to correct its own blinks in the Constitution, and it remains to be seen whether it will be used in future to resolve the most egregious errors of the Supreme Court.
References, Bibliography and Sources
This article was prepared with reference to the following legal authorities, case laws and official sources. The concept of Curative Petition has been developed from Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388 and Mohd. Arif @ Ashfaq v. The Registrar, Supreme Court of India (2014) 9 SCC 737. The concept of inherent powers of Supreme Court was discussed in the case State of West Bengal vs Committee for Protection of Democratic Rights (2010) 3 SCC 571. In Rajendra Kumar Verma vs. State of Madhya Pradesh (2012) 8 SCC 368, it is clarified which are not the valid grounds for seeking a Curative Petition. The concept of jurisdiction is explained in K. R. Srinivas vs. R. M. Premchand (2011) 1 SCC 694 which has established jurisdiction as a valid ground. Sabbaraya Pillai vs. State of Tamil Nadu (2007) 6 SCC 718 is the case dealing with delay in filing of Curative Petition. The mandatory requirement of a Senior Advocate certificate comes out of the case of Common Cause vs Union of India (2016) 5 SCC 453. The procedure is set out in the Supreme Court Rules of 2013, as amended by the Curative Petition Rules of 2014, in particular Order XL. Review and curative jurisdiction is given under the Constitution of India, Article 137 and Article 142. The Supreme Court of India Annual Report 2020-21 includes statistics on Curative Petitions.
