Legal reviews and cures

Advice - Rights and Laws, Feb '14
By Kaushik Gupta

In the furore caused by the Supreme Court reinstating Section 377 of the Indian Penal Code on December 11, 2013 and then rejecting all review petitions filed against its verdict on January 28, 2014, several legal terms have become almost common parlance. Here’s a closer look at some of them.

Reader queries

What is a review petition before Supreme Court?

Sameer, Kolkata

A judgment declared by the Supreme Court is final and binding on all courts within the territory of India under Article 141 of the Constitution of India. However, Article 137 of the Constitution gives the Supreme Court the power to review or take a relook at its own judgment. Under the Supreme Court Rules, 1966 a review petition should be filed within 30 days from the date of judgment and placed before the same judges who passed the earlier order which is under review. If one of the judges retires, as has been in the Section 377 case, then the bench of judges will comprise of the judge(s) remaining and another judge.

A review can be prayed for if: (1) any new and important matter or evidence is discovered which, after the exercise of due diligence, was not within the knowledge of the person seeking review when the judgment was passed; (2) there is any error or mistake which is apparent on the face of the record; or (3) there are any other sufficient reasons. The judges decide a review petition matter sitting in their chamber and not in open court.

What is a curative petition?

Anonymous, Kolkata

There is no provision for a curative petition either in the Constitution or the Code of Civil Procedure. However, in a judgment of 2002, the Supreme Court held that even after dismissal of a review petition under Article 137 of the Constitution, the Supreme Court may entertain a curative petition and reconsider its own judgment or order, in exercise of its inherent powers in order to prevent abuse of its process, to cure a gross miscarriage of justice.

A curative petition can only be filed if a designated senior advocate gives a certificate that such a petition meets necessary requirements. It has to be first circulated in the judges’ chambers and thereafter heard by the three senior most judges of the Supreme Court and by such serving judges who were members of the bench that passed the judgment / order, for which the curative petition has been filed.

Is that the end of the road?

Practically that is the end of the judicial road. However, under Article 143 of the Constitution of India, if it appears to the President of India that a question of law or fact has arisen which is of public importance and the opinion of Supreme Court is required to be obtained, then s/he may refer the matter to the Supreme Court for consideration. This is not necessarily a post-curative petition step. If the President so desires, s/he can make a reference under Article 143 at any time.

Kaushik Gupta is a lawyer by profession, a photographer by passion, and happy to answer your queries on legal matters around gender and sexuality. Write in your queries to vartablog@gmail.com, and they will be answered with due respect to confidentiality.