Curative petition: The last legal recourse in LGBT issue

  • Satya Prakash, Hindustan Times, New Delhi
  • Updated: Dec 13, 2013 00:25 IST

As the UPA government talks of filing a curative petition against the Supreme Court’s verdict criminalising homosexual acts between consenting adults in private, not many are aware about this last legal recourse available to a litigant.

In fact, there is no provision in the Constitution for filing a curative petition. After dismissal of an appeal, the only opportunity a litigant can avail of is Article 137, which empowers the SC to review any judgment pronounced or order made by it.

What if there are infirmities in an order passed by the apex court? It was precisely for this reason that the SC in 2002 devised the mechanism of curative petition.

In Rupa Ashok Hurra’s case, a constitution bench held that a final order passed by SC couldn’t be attacked by an aggrieved person. Recognising the need for flexibility and substantive justice, this mechanism was devised.

This petition can be used by a person who was not a party to the proceedings or was not heard. It can also be filed where a judge failed to disclose his/her connection in any manner with the subject matter before him/her. It is heard by the top three judges including the Chief Justice of India plus the judges who dismissed the review petition.

However, much depends on the judges’ discretion and dismissal rate of curative petitions is high with only two curative petitions allowed earlier.

In March 2013, the SC allowed a curative petition against its 2009 judgment which held that if a woman kicked her daughter-in-law or threatened her with divorce, it would not amount to cruelty under Section 498A of the Indian Penal Code.

In April 2010, the SC also corrected a mistake in its verdict that had led to wrongful detention of four accused in a 21-year-old murder case without any hearing.

Will it happen in the case on SC verdict on Section 377 of the IPC? It remains to be seen.

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