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Why in News?
Recently the two Nirbhaya case convicts have filed Curative petitions in the Supreme Court. Earlier, the convicts had filed a mercy petition and review petition which has been rejected.
What is a curative petition?
It is the last judicial resort available for redressal of grievances in court which is normally decided by judges in-chamber. It is only in rare cases that such petitions are given an open-court hearing.
The concept of the curative petition was first evolved by the Supreme Court of India in the matter of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) where the question was 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.
The Supreme Court in the said case held that to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgments in the exercise of its inherent powers. For this purpose, the Court has devised what has been termed as a “curative” petition.
Its objectives are two folds- avoid a miscarriage of justice and to prevent abuse of process.
To entertain the curative petitions, the Supreme Court has laid down certain specific conditions:
A curative petition may be filed after a review plea against the final conviction is dismissed.
It must be rare rather than regular.
1. The petitioner will have to establish that there was a genuine violation of principles of natural justice and fear of the bias of the judge and judgment that adversely affected him.
2. The petition shall state specifically that the grounds mentioned had been taken in the review petition and that it was dismissed by circulation.
3. The petition is to be sent to the three senior-most judges and judges of the bench who passed the judgment affecting the petition, if available.
4. If the majority of the judges on the above bench agree that the matter needs hearing, then it would be sent to the same bench (as far as possible) and the court could impose “exemplary costs” to the petitioner if his plea lacks merit.
5. The Bench at any stage of consideration of the curative petition can ask a senior counsel to assist it as amicus curiae (Friend of the court).
6. A curative petition is usually decided by judges in the chamber unless a specific request for an open-court hearing is allowed.
Grounds for Rejection
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.
Constitutional provisions in this regard
The concept of the curative petition is supported by Article 137 of the Indian Constitution. It provides that in the matter of laws and rules made under Article 145, the Supreme Court has the power to review any judgment pronounced (or order made) by it. Such a petition needs to be filed within 30 days from the date of judgment or order.
For seeking mercy petition, the death sentence by a sessions (trial) court must be confirmed by the High Court.
The death sentence convict has an option to appeal to the Supreme Court. If the Supreme Court either refuses to hear the appeal or upholds the death sentence, then the convict or his relative can submit a mercy petition to the President of India (Articles 72) or the Governor of the State (161).
Session Court: District court is referred to as sessions court when it exercises its jurisdiction on criminal matters under the Code of Criminal procedure (CrPc).
Grounds of Appeal
In his/her mercy petition, the person concerned is required to state the grounds upon which he/she requests for the grant of pardon.
These grounds may not have any value in the eyes of law for exonerating the accused person from the offense, but they may play an important role in the release of the person by the President.
The grounds, such as the convicted person is the only bread earner of the family or the physical fitness of the convict, his age or even the law was quite harsh or the court by chance committed any mistake or error inadvertently, may be taken into consideration at the time of disposal of the mercy petition.
Supreme Court in Kehar Singh v Union of India, 1988 case reiterated its stand and held that the grant of pardon by the President is an act of grace and, therefore, cannot be claimed as a matter of right.
Need for the Pardoning Power
The philosophy underlying the pardon power is that “every civilized country recognizes and provides for the pardoning power as an act of grace and humanity in course of law”.
The pardoning power is founded on the consideration of public good and is to be exercised on the grounds of public welfare, which is the legitimate objective of all punishments.
Constitutional Provision related to the Pardoning Power of the President
Article 72 provides the pardoning power to the President of India, it says:
The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense-
in all cases where the punishment or sentence is by a Court-martial;
in all cases where the punishment or sentence for an offense against any law relating to a matter to which the executive power of the Union extends;
in all cases where the sentence is a sentence of death.
A Court-martial is a trial in a military court of a member of the armed forces who are charged with breaking military law.
Article 161 provides that the Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense against any law relating to a matter to which the executive power of the State extends.
In Dhananjoy Chatterjee alias Dhana v State of West Bengal, 1994 case the Supreme Court has said that “The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own”.
The advice of the appropriate Government binds the Head of the state.
Meaning of Pardon, Commute, Remission, Reprieve, Respite, etc
Pardon: The president can totally absolve/acquit the person for the offense and let him go free like a normal citizen.
Commute: To reduce the type of punishment into a less harsh one. For example Rigorous imprisonment to simple imprisonment.
Remission: To reduce the punishment without changing the nature of the punishment. For example 20 years of rigorous imprisonment to 10 years of rigorous imprisonment.
Reprieve: A delay is allowed in the execution of a sentence, usually a death sentence for a guilty person to prove his innocence.
Respite: Reduce the degree of punishment by looking at specific grounds like pregnancy, old age, etc.
Difference between the pardoning power of President and Governor
Death sentence: The President can pardon the death sentence but the Governor has no power to pardon the death sentence.
Court-martial: The President can pardon in case of Court-martial. But the Governor cannot pardon in the court-martial.
Jurisdiction: President exercises his judicial powers for the punishment which is given under the law made by the Union. Whereas the Governor exercises his judicial powers for the punishment which is given under the law made by the State.
Judicial review: President’s pardon/rejection/delay is also subjected to judicial review. However, if a court finds that the process of the decision taken by the President under Article 72 was not arbitrary or unreasonable, the decision then cannot be interfered with.