A Delhi court on Tuesday issued a death warrant against four convicts in the December 2012 gangrape case allowing their execution on January 22 at 7 am in Tihar Jail. The verdict came after the parents of the victim moved the court seeking to expedite the procedure to hang all the four convicted in the case and also demanded issuance of death warrant against them.
In September 2013, a fast-track court held the four convicts guilty of 13 offences including gangrape, unnatural sexual assault and murder of the woman, and attempt to murder her male friend. The judgment was upheld by the Supreme Court in 2017.
Three of the four convicts filed a review petition against the verdict which was rejected by the Supreme Court. This year, the four convicts filed a mercy petition which was rejected by the President of India. In this scenario, the counsel of the convicts is left with only one option – to file a curative petition in the top court.
What is a curative petition?
A curative petition may be filed after a review plea against the final conviction is dismissed. It is meant to ensure there is no miscarriage of justice, and to prevent abuse of process. A curative petition is usually decided by judges in chamber, unless a specific request for an open-court hearing is allowed.
Every curative petition is decided on the basis of principles laid down by the Supreme Court in Rupa Ashok Hurra Vs Ashok Hurra & another, 2002. This was a case of a matrimonial discord where the question of validity of a decree of divorce reached the SC after the woman withdrew the consent she had given to divorce by mutual consent.
The judgment held that technical difficulties and apprehensions over the reopening of cases had to give way to a final forum for removing errors in a judgment where administration of justice may be affected.
The court ruled that a curative petition can be entertained if the petitioner establishes there was a violation of the principles of natural justice, and that he was not heard by the court before passing an order. It will also be admitted where a judge failed to disclose facts that raise the apprehension of bias.
The SC has held that curative petitions must be rare rather than regular, and be entertained with circumspection. A curative petition must be accompanied by certification by a senior advocate, pointing out substantial grounds for entertaining it. It must be first circulated to a bench of the three senior-most judges, and the judges who passed the concerned judgment, if available. Only when a majority of the judges conclude that the matter needs hearing should it be listed — as far as possible, before the same Bench.
“It shall be open to the Bench at any stage of consideration of the curative petition to ask a senior counsel to assist it as amicus curiae. In the event of the Bench holding at any stage that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner,” the court had held.