Review Petition, Curative Petition, Mercy Petition – Explained

REVIEW PETITION

Review petition in legal parlance means a power of the Supreme Court for the second examination and a judicial re-examination of its own judgment and orders. India is governed by Rule of Law and if any error or miscarriage of justice has occurred while giving a judgment, then it can be ratified by a review petition. It is a discretionary right of the court. Review petition is not rehearing of appeal all over again, it is power of correcting the “patent error” in an earlier judgement. The provision is given under Article 137 of Constitution of India which says- “Review of judgments or orders by the Supreme Court— Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have the power to review any judgment pronounced or order made by it.”

The time period within which a review petition should be filed:

Supreme Court Rules, 1966 says that– a review petition is to be filed within thirty days from the date of judgment or order. Moreover, if any delay occurs in filing a petition, if the petitioner justifies the delay with a strong reason, the court may allow the same.

Furthermore, in a situation where a review petition is dismissed by the Apex Court, it may be considered as a curative petition filed by the petitioner, to prevent the abuse of process. In accordance with section 114 and order XVII, Rule (1) of Code of Civil Procedure, 1908 a civil review petition can be moved. While a criminal review petition can be filed only on a ground of error apparent on the face of the record.

So, the review will lie in the Supreme Court on:

1. Discovery of new and important matter or evidence
2. Error apparent on the record
3. Other Sufficient reason- it has to be decided by the court

The concept of the review petition is an exception to the principle of ‘stare decisis’ meaning “to stand by that which is decided” as Courts generally do not unsettle a decision without a strong case.

Prominent cases:

Lily Thomas vs Union of India &Ors(1) - the court had described the review petition as-

“.... the power to review can be exercised for correction of a mistake and to substitute a view. Such Powers can be exercised within the limits of the statute dealing with the exercise of power. The mere possibility of two views on the subject is not a ground for review.”

CURATIVE PETITION

A curative petition is the last constitutional remedy available in the line of due justice is given to the person whose review petition has been dismissed by the Supreme Court. Where the Constitution of India exclusively talks about the power of the Supreme Court to review petition under Article 137, it is silent about the curative petition. The Supreme Court is very vigilant while using a Curative Petition. The Court has laid down certain specific guidelines for the courts to entertain these petitions in only rare cases where gross violation of a principle of natural justice has been occurred, otherwise unnecessary petitions would seek for the second review.

Prominent cases:

The concept of Curative petition was first developed in the landmark judgment, Rupa Ashok Hurra vs. Ashok Hurra and Anr(2). where a question was raised that whether an aggrieved person is entitled to any relief against the final judgment of the Apex Court after the dismissal of the review petition. In this case, the Court re-examined its judgment in the exercise of its inherent power to stop the abuse of its process and to cure a gross miscarriage of justice. The Apex Court, in this case, stated that the curative power of the court flows from Article 142 of the Constitution, which gives the Court power to do complete justice.

Various requirements had been laid down by the Supreme Court in order to entertain the curative petition:

• Court reaffirms that litigants are barred on challenging final decisions.
• In cases of miscarriage of justice, it would be its legal and moral obligation to rectify the error.
• 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.
• The curative petition must accompany certification by a senior lawyer relating to the fulfillment of the requirements.
• The petition is to be sent to the three judges of the bench who passed the judgment affecting the petition.
• If the majority of the judges on the bench conclude that the matter needs hearing before the same bench which passed appropriate order, it should be listed.
• Exemplary costs could be imposed by the court to the petitioner if his plea lacks merit.

MERCY PETITION

Mercy petition is the last resort available to a convict under prevailing laws and the Constitution of India. It is basically the last relief to an innocent person with whom miscarriage of justice and abuse of process has been done and caused his conviction. This remedy is available under doubtful conviction. A convict has a right to present a mercy petition to The President under article 72 of the Constitution. Similarly, the Governors of the States are entitled to grant pardon under Article 161 of the Indian Constitution. Article 72 & 161 of the Indian Constitution state that The President & Governors are empowered to reprieve, respite, or remit punishments pronounced by the Apex Court & High Courts respectively. However, the power to grant pardon is not at the President’s & Governor’s discretion, but it is done after consultation with the Council of Ministers. The scope of Article 72 is much wider than Article 161.

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 looking at specific grounds like pregnancy, old age, etc.

The concept of Mercy Petition is followed across various countries like India, USA, Canada, UK, etc. In a civilized society like India, the power to pardon provides inhuman touch in the judicial system which provides to analyze the case without the application of the legal provision.

Prominent cases:

Dhananjoy Chatterjee alias Dhana v State of West Benga(3) - Dhananjoy's execution was scheduled on 25th June 2004 but it had stayed after his family petitioned the Apex Court, and filed a mercy plea with the then President Late Dr. APJ Abdul Kalam. A campaign to ensure Dhananjoy's hanging was initiated by Mrs. Meera Bhattacharjee on 26th June 2004 and the wife of Mr. Buddhadeb Bhattacharjee the then Chief Minister of West Bengal was at the forefront of this campaign. She made a passionate plea for Dhananjoy's hanging after providing details of the crime. Several individuals and human rights groups came forward to oppose the execution. The mercy plea was finally rejected by the president on 4th August 2004. (4)

The Supreme Court had 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”.

In Kehar Singh v. Union of India(5), the court reiterated its earlier 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. The power exercisable by The President being exclusive of administrative nature is not justifiable”.

[The author Nikita Jain is a 3rd year B.B.A., LL.B., (Hons.)student at school of law, University of petroleum and energy studies, Dehradun.]

Disclaimer: This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.

1. (2000) 6 SCC 224
2. AIR 2002 SC 1771
3. (1994) 2 SCC 220
4. “ANALYSIS OF REVIEW PETITION, CURATIVE PETITION AND MERCY PETITION”<https://intolegalworld.com/LegalArticles.aspx?title=review-petition-curative-petition-mercy-petition>accessed on 9 February 2020
5. [1989(1) SCC 204]