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After a thorough trial Death Sentence in Nirbhaya Rape and Murder case have been awarded to all 4 convicts in the case. But the date for execution is being shifted again and again. Today we will understand what are the legal rights that vest in the convicts because of which the execution of the death sentence is delayed. 

Review petition: 

The term ‘Review’ in legal parlance indicates a judicial re-examination of the case. Thus, in order to rectify an error and prevent the gross miscarriage of justice, a review provision has been laid down under Section 114 of the Code of Civil Procedure 1908. 

The Indian Constitution by virtue of Article 137, empowers the Apex Court to review any judgment or order pronounced by it however this is subject to the provisions of any law and rules made under Article 145. The Supreme Court rules, 1966, state that such a petition is required to be filed within thirty days from the date of judgment or order and the same has been to circulated without oral arguments to the same bench which had delivered the judgment. The Supreme Court is the topmost Court of the country has the power to review its own decision along with the decisions of the High Court. Any party who is aggrieved with the decision of the Court in any particular case can file a review petition after following the due procedure laid down by the law. It should be noted that the review petition plays a pivotal role in situations wherein no appeal is preferred or in cases where there is no provision for appeal.

The concept of the review petition is an exception to the principle of ‘stare decisis’ as Courts generally do not unsettle a decision without a strong case.

The Court has the discretionary power and right over Review Petition and also the grounds for review are limited.

NOTE: In situations where the review petition has been dismissed by the Apex Court, it may consider a curative petition filed by the petitioner in order to stop the abuse of process.

Prominent case:

  1. Mayawati Disproportionate Assets case: On 4th October 2012, a person named Kamlesh Verma had filed a review petition in the Supreme Court. Based on this petition the Apex Court decided to review its earlier judgment in an open court in assets disproportionate case against Mayawati. The case dates back to 2003 when the Central Bureau of Investigation (CBI) had filed a case against Mayawati for owing and acquiring assets disproportionate to her known source of income. However, Mayawati and her supporters had stated that CBI’s investigation was purely illegal and that all the assets owned and acquired by were in the nature of gifts and contributions made by the party workers and supporters. The assets case was finally quashed on 6th July 2012 as Court was of the view that the case was unwarranted. Post the dismissal the CBI also did not file any appeal.

  2. Vodafone-Hutchison Tax Case: The Government of India moved the Apex Court on 17th February 2012, to review its decision that the Indian Income Tax Department does not have jurisdiction to levy Rs.11,000 crore as tax on the overseas deal between Vodafone and Hutchison. However, the same was dismissed by the Apex Court on 20th March 2012 on the grounds that the case lacked merits.

Curative Petition:

Curative Petition is the last constitutional remedy available to a person whose review petition has been dismissed by the Apex Court. It should be noted that the Constitution exclusively talks about the review power of the Supreme Court but it is silent when it comes to the curative petition. The Apex Court first developed the concept of a curative petition in the landmark case of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) , 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. Furthermore, the Court stated that the powers put down in this article are purely curative in nature and it cannot be interpreted as powers which empower the Court to ignore those substantive rights of a litigant while dealing with a case pending before it. However, this power of the court cannot be used to replace the essential law applicable to the case or case under consideration of the court.

The Rupa Hurra Case lays down the requirement to entertain the curative petition:

  • Except when very strong reasons exist, the Court shall not entertain an application seeking reconsideration of an order of the Supreme Court which has become final on the dismissal of a review petition.

  • While acknowledging that it was not possible to enumerate all the grounds on which a curative petition may be entertained, the Court laid down certain broad parameters for exercise of this power.

  • The petitioner has to prove that there was a genuine violation of principles of natural justice.

  • The petition should specifically state that the grounds mentioned had been taken in the petition and the same was dismissed by circulation.

  • The curative petition shall be certified by a senior advocate.

  • The curative petition is then circulated to the three senior-most judges and also to the judges who passed the impugned judgment.

  • If the majority of the judges agree that the matter needs hearing, then it would be sent to the same bench.

  • Exemplary costs could be imposed by the court to the petitioner if his plea lacks merit.

  • The concept of the curative petition has no limitation period and it has also been guaranteed by Article 137 of the Indian Constitution.

Mercy petition:

Mercy petition is a concept, which is the last resort available to a convict. A convict has the right to present a mercy petition to the President of India under Article 72 of the Constitution. It is basically the last relief available to the convict under all the prevailing laws. Similarly, the Governors of the State are entitled to grant pardon under Article 161 of the Indian Constitution.

Article 72 & 161 of the Indian Constitution states that President & Governor are empowered to reprieve, respite or remit punishment 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.

Prominent case :

Dhananjoy Chatterjee alias Dhana v State of West Bengal, 1994: Dhananjoy's execution was scheduled on 25 June 2004 but it has 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 On 26 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 4 August 2004. 

The Apex Court had held 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’. And the mercy plea was subsequently rejected by the President.