The Constitution of India, 1950 under Article 137 gives the power to the Supreme Court to review any judgement pronounced by it or order made by it, subject to provisions of any law or rules made under Article 145 under which the Supreme Court is authorised to make rules as to the conditions under which the court may review any judgment or order. This therefore framed Order XL. The Supreme Court Rules, 1996 states that such petition is to be filed within 30 days from the date of the judgement. It is to be circulated without oral arguments to the same bench of Judges who had earlier delivered the judgement which is sought to be reviewed.
The judicial re-examination of the case is known as “Review”. The provision for review is laid down under Section 114 of the Code of Civil Procedure giving substantive right to review and Order XLVII provides for the procedure. The review exists to prevent the gross miscarriage of justice and in order to rectify an error. It is the discretionary right of the court, any party which is aggrieved by a judgement or order may apply for reviewing the judgement. It can be filed where there is no provision for appeal or no appeal is preferred. The grounds for review are limited. A review is filed in the same court. The provision for review is an exception to the principle of Stare Decisis as courts generally do not unsettle a decision, without a strong case.
If a review petition is dismissed by the Supreme Court, the petitioner can file a Curative petition and the Court may consider the same.
In 2017 the three convicts filed a review petition in the Supreme Court, Delhi Police opposed the plea in SC but in July 2018 the Supreme Court dismissed the review petition of all three convicts. One of the four convicts in the Nirbhaya rape case, Akshay, filed a review petition in December 2019 to the Supreme Court on the ground that “rising pollution” has already increased the mortality rates. This plea was also rejected by the Court and it stated that if they have to file a Mercy petition then it has to be done within the limited time.
Supreme court rules under Order XLVIII states that curative petition can be filed after the dismissal of a case in exercise of review jurisdiction of the Supreme Court under Article 137 of the constitution by way of circulation, a Curative petition is filed under the inherent jurisdiction of the court to prevent abuse of its process and gross miscarriage of justice.
The concept of the curative petition was awarded in the case of Rupa Ashok Hurra vs. Ashok Hurra and anr. (2002) where a question was raised that whether a person aggrieved by the decision of review petition is entitled to any relief against the final order/judgement.
The Supreme Court, in this case, held that to prevent abuse of process as well as to cure miscarriage of justice, it may consider reviewing its judgements. The court for this purpose devised the term “curative”.
A senior advocate has to first certify the curative petition and then only it is circulated to the three senior-most judges and to the judges who delivered the impugned judgement. There is no time limit prescribed for filing a curative petition as it is guaranteed under Article 137 of the constitution of India.
The Supreme Court laid down specific conditions under which it will entertain the curative petition:
The four convicts were earlier scheduled to be hanged on January 22 at 7 AM. The fresh death warrant was issued after the President of India rejected the mercy plea of one of the convicts. One of the convicts Vinay, (25) filed a Curative Petition stating that his young age has been erroneously rejected as a mitigating circumstance. “The petitioner’s socio-economic circumstances, the number of family dependants including ailing parents, good conduct in jail and probability of reformation have not been adequately considered leading to a gross miscarriage of justice,” the plea said.
It said the court’s judgment has relied on factors such as “collective conscience of society” and “public opinion” in deciding the sentence to be imposed on him and others. The Supreme Court dismissed the curative petition of Mukesh and Vinay on January 14 2020.
When a person has exhausted all the remedies available to him under the prevailing laws as well as under the constitutional remedies, mercy petition is the last resort under the Indian judicial system. The person then may file a mercy petition before the President of India under Article 72 of the Indian constitution or to the governor of the state under article 161 of the Indian constitution.
The President of India is empowered to reprieve, respite or remit punishment pronounced by the apex court that is the supreme court of India in accordance with article 72 of the Indian constitution. It cannot be said that the power to grant the pardon by the President is discretionary as the decision is reached by consulting with the council of ministers of the Ministry of Home Affairs.
Similarly, the governor of the state has the power to reprieve, remit or respect punishment of any person convicted of any offence in accordance with article 161 of the Indian constitution.
There exist no statutory written procedure for dealing with mercy petitions, the convicted person either himself in person or his relative on his behalf submit a written petition in writing to the president. The petitions are received by the President’s secretariat on behalf of the President which is then forwarded to the Ministry of Home Affairs for their comments and recommendation.
A person convicted under the death sentence is allowed to make the petition within a period of seven days after the date on which the superintendent of jail informed him about the dismissal of the appeal or special leave to appeal by the Supreme Court. Then the home ministry in consultation with the concerned state government discuss the merit of the petition after that the petitioner sent back to the president for his decision.
When the mercy petition is moved to the president it is the duty of the jail superintendent to stay the execution of the death sentence.
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.
The Union Home Ministry forwarded the mercy petition of one of the convicts to the President on 16 January 2020. Only hours after the petition was forwarded the Hon’ble President rejected the plea. The Tihar officials requested for a new date since the executions could not take place till after all mercy pleas were settled.
The Supreme Court of India introduced the concept of review and order passed by them keeping in mind that error is natural and can be committed by any human.
The power of review is not an inherent power of the court and it must be conferred by law is a special or by necessary implications. But it also must be noticed that the power of review is inherent in every Court to prevent the miscarriage of justice or correct grave and palpable errors committed by it. The doctrine of curative approach laid down by the Supreme Court to prevent the miscarriage of justice may not be in consonance with the constitution as it violates the doctrine of separation of powers which is the basic structure of the constitution.
The power to grant mercy with the executive to cure the defect of arbitrary and erroneous that sentences and provide an additional bulwark against the miscarriage of justice. Mercy power is a safeguard a necessary precondition for the death penalty but it should not be applicable for excusing all crimes that excusing them would lead to a wrong message to the society.
Presently the Nirbhaya convicts had committed a crime which is so heinous and soul-shattering that accepting the mercy petition would mean that the legislative system of our country is indirectly providing a chance to the committer of such crimes or people of such mindset to go on acting the same way without any fear. The President also stated that the concept of mercy petition should not exist for heinous crimes which at some level is correct but cannot be applied to all types of heinous crimes due to the Fundamental Right of Equality.
The date decided for the execution of sentence cannot be said to be the final date as three out of 4 convicts still haven’t filed their mercy petitions and given the fact that a mercy petition can be filed any number of times this may also lead to delay in justice.