File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Review Petition v/s. Curative Petition v/s. Mercy Petition With Special Reference To Nirbhaya Case

Review Petition

In India, a binding decision of the Supreme Court/High Court can be reviewed in a review petition. A review petition cane be filed by the parties aggrieved by the decisions of Supreme Court. The provision of review is an exception to the principle of stare decisis as courts generally do not unsettle a decision, without a strong case.

As per Article 137 of the Constitution of India and the rules made under Article 145, the Supreme Court of India has the power to review its judgment pronounced by it. As per Supreme Court rules, 1966 such a petition is to be filed within 30 days of the pronouncement of judgment or order and that petition should be circulated without oral arguments to the same bench that delivered the judgment.

Furthermore, if a review petition is dismissed by the Supreme Court, it may consider a curative petition filed by the petitioner so as to prevent abuse of process. In accordance with Order XVII, Rule1(1) of Code of Civil Procedure, 1908, a civil review petition can be moved. While a criminal review petition can be filed only on the ground of error apparent on the face of record.

Prominent case:

2G Spectrum Case

Government of India filed a review petition in Supreme Court on 2nd March 2012 seeking partial review of the order by the court passed on 2nd February 2012 which had quashed 122 licenses. Supreme court’s authority was questioned by the government overruling against first-come first served policy but it stayed away from challenging the cancellation of 122 licenses that was issued during the tenure of A Raja as Telecom Minister.

On the very same day, Sistema who was a majority shareholder in MTS India also filed a review petition in Supreme court. On 4th April, 2012 the Supreme court accepted Government’s review petition on limited grounds and dismissed all other 10 review petitions.

Curative petition
The Supreme court of India evolved the concept of curative petition in the landmark case of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) where a question was raised that whether an aggrieved person is entitled to any relief against the final order/judgment of the Supreme court after dismissal of review petition.

In this case it was held by the Supreme court that so as to prevent abuse of process as well as to cure miscarriage of justice, it may reconsider its judgments. The court has devised a term ‘curative’ for this purpose. The petitioner is required to aver specifically that the grounds mentioned that had been taken in the review petition filed earlier and also it was dismissed by circulation.

A curative petition is required to be certified by a senior advocate and then it is circulated to the three senior most judges and the judges who delivered the impugned judgment. There is no time limit for filing a curative petition and it is guaranteed under Article 137 of the Constitution of India.

Essentials
The Supreme court has laid down specific conditions in order to entertain curative petition which are as follows:

  1. It has to be established by the petitioner that there was a genuine violation of principles of natural justice.
  2. It shall be specifically stated in the petition that the grounds mentioned had been taken in the petition and that it was dismissed by circulation.
  3. The curative petition shall be certified by a senior advocate.
  4. The curative petition is then circulated to the three senior most judges and also to the judges who passed the impugned judgment.
  5. If majority of the judges agree that the matter needs hearing, then it would be sent to the same bench.
  6. Exemplary costs could be imposed by the court to the petitioner if his plea lacks merit.


Mercy petition
In the context of Indian Judicial System, Mercy Petition is the last resort. When a person has lost all the remedies available to him/her under all the prevailing laws as well as under the Constitutional remedies, he may file a mercy petition before the President of India under Article 72 of the Indian Constitution or the Governor of the state under Article 161 of the Indian Constitution. Then the petition of his will be treated on mercy not on the legality of the case.

In accordance with Article 72 of the Indian Constitution, President is empowered to reprieve, respite or remit punishment pronounced by the Apex court i.e. the Supreme court of India. However, the power to grant pardon is not discretionary as any decision is reached by consulting with the council of masters.

In accordance with Article 161 of the Indian Constitution, Governor of the State shall have the power to reprieve, respite or remit punishment of any person convicted of any offence.
President Ram Nath Kovind said that rape convicts under the Protection of Children from the Sexual Offences Act (POCSO) should not be allowed mercy petition. According to him, “Women safety is a serious issue and rape convicts under POCSO should not be allowed to file mercy petitions.

Prominent case

Dhananjoy Chatterjee alias Dhana v State of West Bengal, 1994

The Supreme Court held 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”.

Nirbhaya Fearless

Nirbhaya was born in a working class family. Nirbhaya was a 23- years old physiotherapy student. She dreamt to become a doctor. In 2003, Nirbhaya received the International Women of Courage Award from the U.S Department of State.

On the horrendous day of December 16, 2012, she was brutally raped in a bus in Delhi, India. As per section 228-A of Indian Penal Code, 1860, no person is allowed to print or publish any matter without the permission of the court against whom the offence punishable committed under section 376-376D or otherwise no person is allowed to disclose the identity of the victim or he will be punished with imprisonment for a term which may extend to 2 years and shall also liable to fine.

Two weeks after the attack, i.e on December 29, 2012, she died. She made two police statements before she died that all the six attackers should be punished and she should be given justice. After the death, many demonstrations and protests spread to almost every corner of the country.

Afterwards, the five men and the bus driver were spotted and arrested. They were charged with kidnapping, rape and murder. One of the person (Ram Singh) arrested committed suicide in the prison and the teenager was given three years in a reformatory.

The rest of the accused went on a trial in a fast track court. On 10 September 2013, the four remaining adult defendants were found guilty of rape and murder and three days later were sentenced to death by hanging.

In the death reference case and hearing appeals on 13 March 2014, Delhi High Court upheld the guilty verdict and the death sentences. In 2013, the Criminal Law (Amendment) Ordinance, 2013 was promulgated by President Pranab Mukherjee, several new laws were passed, and six new fast-track courts were created to hear rape cases.

  • On July 9, 2018, the Supreme court rejected the review pleas of the three out of four convicts awarded death penalty.
  • On December 13, 2018, Nirbhaya’s parents moved to Patiala House Court in order to seek expedition of the execution of convict.
  • On October 29, 2019, Tihar jail gave seven days time to these convicts to file the mercy petition.
  • On November 8, 2019, one of the convicts (Vinay) filed a mercy petition with Delhi Government.
  • On November 29, 2019, Home Department of Delhi Government rejected this mercy petition.
  • On December 10, 2019, one of the convicts (Akshay) filed a review petition in Supreme court.
  • On December 18, 2019, Supreme court rejected the review petition and Akshay to file a mercy petition before President in 3 weeks’ time.
  • Counsel for the convicts filed a curative petition in the Supreme court which was rejected by the court and accordingly mercy petition was filed which was also dismissed.
  • On January 7, 2020, Delhi court on Tuesday issued a death warrant for the four convicts in the Nirbhaya gang rape and murder case. The verdict comes during the hearing of a plea seeking the issuance of 'black warrant' against the four convicts in the Nirbhaya gang rape and murder case.
  • The convicts will be hanged on January 22 at 7 am.


References:

  1. https://www.drishtiias.com/daily-updates/daily-news-analysis/mercy-petition
  2. https://www.business-standard.com/article/pti-stories/nirbhaya-rape-murder-case-convicts-say-they-have-option-of-filing-curative-petition-119122400779_1.html

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly