Justice Kurian Joseph’s finding that the Supreme Court did not follow proper procedure while deciding the curative petition of Yakub Memon, the lone death row convict in the 1993 Mumbai blasts case, has brought into focus this judicially-devised mechanism considered the last legal recourse available to a litigant.
In fact, there is no provision in the Constitution regarding curative petition. After the dismissal of an appeal, the only opportunity a litigant can avail of is Article 137, which empowers the top court to review any judgment or order pronounced by it.
What if there are infirmities in an order passed by the Supreme 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 the top court couldn’t be attacked by an aggrieved person. But recognising the need for flexibility and substantive justice, the court devised the mechanism of curative petition.
It can be used by an aggrieved 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.
A curative petition is generally not heard in open court and is circulated to a bench of the three senior-most judges and the judges who passed the judgment under challenge, if the latter were still available.
Memon’s curative petition was dismissed on July 21 by a bench of Chief Justice of India HL Dattu, Justice TS Thakur and Justice AR Dave.
Justice Joseph said he along with Justice Dave and Justice J Chelameswar had on April 9 rejected Memon’s review petition and so he and Justice Chelameswar should have been on the curative bench.
Unless this procedural flaw was rectified, it would be a clear violation of Article 21 of the Constitution, saying, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Justice Joseph stayed the death warrant for Memon’s execution on July 30, saying his curative petition should be decided afresh in accordance with law.
However, much depends on the judges’ discretion and the dismissal rate 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 court 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.