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.
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.
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.
The government is not willing to file a curative petition .but what about Naz and other petitioners ? Are they planning to file a curative petition ?
ReplyDeleteDear Anonymous
ReplyDeleteThank you for your query. There have been no substantive plans for a curative petition from other parties so far. But as far as "Varta" has information, the option will definitely be considered. We will report about it when we have concrete information.
Best wishes
Pawan Dhall
On behalf of Varta