WHAT DOES CURATIVE PETITION MEAN?

In the recent times, one has heard the word curative petition several times as some of the Accused in the Nirbhaya Case have moved such a petition in the Supreme Court of India. A curative petition is the last resort available to a person before the Supreme Court of India.

The concept of curative petition is comparatively of recent times. Its’ jurisprudence has emerged from a Latin Maxim “actus curiae neminem gravabit”, which means that an act of the court shall prejudice no one. It is a discretionary power given to the Supreme Court that can be exercised in rarest of the rare cases.

The presence of this remedy is being developed with time through judicial precedents pronounced by the Hon’ble Supreme Court of India, to provide complete access to justice through a fair and just procedure under the law. Accordingly, its essence was found by the Supreme Court in case of Rupa Ashok Hurra Vs Ashok Hurra and Anr. ( AIR 2002 SC 1771),where the Court reconsidered its judgment in exercise of its inherent powers and laid down certain parameters that can be considered while filing and entertaining a curative petition under Article 142 of the Constitution of India, 1950.

This petition can be filed only when the final order/judgment is being pronounced by the Hon’ble Supreme Court and review petition against that final order/judgment is also dismissed. Thereafter, any person having a strong apprehension of any error, omission or mistake that has been committed in deliverance of a decision or a gross violation of the principle of natural justice can move such a petition Under Articles 129, 137, 141 and 142 of Constitution of India read with Order XLVIII of the Supreme Court Rules 2013.

For filing the curative petition, it is essential that it states the details of the judgment and final order against which a review petition has been filed and dismissed by the court. The curative petition must raise a question of law or laws of general public importance and at no point can it raise any facts in issue. The petition must state the same grounds as stated in the review petition filed earlier and must not state any new grounds.

It is also required that, a Senior Advocate needs to certify and point out substantial grounds for the petition to be entertained and the same will be reviewed by the three Senior-Most Judges of the Court alongside the Judges who passed the judgment and if the majority feels that there was a violation, then the curative petition would be heard by the same bench. However, Court can also impose exemplary costs on the petitioner if it finds any discrepancy during the proceedings.

Essentially, these Petitions are being heard by the Judges in chamber unless, it is specifically requested to be heard in an open-court. Also, the curative petition is not governed by the provisions of the Limitation Act but it must be filed within a reasonable time being the last legal remedy available to the aggrieved person.

Therefore, the provision of curative petition renders every aggrieved person to raise substantial grounds towards their innocence in order to prevent injustice. It is a constitutional right based on principles of natural justice, fair trial and lawful administration.

Lakshmi Vishwakarma

Associate

The Indian Lawyer

SUPREME COURT DISMISSES CURATIVE PETITIONS AND UPHOLDS DEATH PENALTY OF NIRBHAYA CASE CONVICTS

Recently, a 5-Judge Supreme Court Bench has passed an Order dated 14-01-2020, thereby, rejecting the Curative Petitions filed by two of the convicts in the Nirbhaya case, namely, Mukesh Singh and Vinay Sharma, and further, rejecting the Application for stay on execution of death sentence issued by the Trial Court on 07-01-2020.

Earlier, the Fast-Track Court had issued the Order of Death Penalty dated 13-09-2013 to all 4 adult perpetrators, namely, Mukesh Singh, Vinay Sharma, Akshay Thakur and Pawan Gupta (Convicts), in the 2012 Nirbhaya case for the offence of brutal gangrape, unnatural offence and murder of the deceased victim (Nirbhaya), and attempt to murder her male friend. The said Order was upheld by the Delhi High Court on 13-03-2014 and subsequently, by the Supreme Court on 05-05-2017.

Thereafter, three of the Convicts, Mukesh Singh, Vinay Sharma and Pawan Gupta had filed Review Petitions in the Supreme Courtseeking review of the Order of Death Penalty upheld by the Supreme Court on 05-05-2017. But a 3-Judge Bench of the Apex Court dismissed the said Review Petitions vide Order dated 09-07-2018 on the grounds that the submissions and evidences put forward in the Review Plea were the same as in the Appeal in 2017 and that the Petitioners could not be allowed to re-argue the appeal on merits of the case, after the case has already been looked into by the Trial Court, the High Court and the Apex Court at length.

Fearing more delay in execution of death penalty of the 4 Convicts, Nirbhaya’s parents had approached the Patiala House Trial Court on 13-12-2018, seeking execution of the Order of Death Penalty dated 13-09-2013 at the earliest.

Thereafter, one of the Convicts, Vinay Sharma had filed a Mercy Petition with the Delhi Government on 08-11-2019, which was forwarded to the President of India on 06-12-2019. The same is still pending for decision by the President.

Meanwhile, one of the Convicts, Akshay Thakur, filed a Review Petition on 10-12-2019 in the Supreme Court seeking review of the Order of Death Penalty upheld by the Supreme Court on 05-05-2017, which has been dismissed by a 3-Judge Bench of the Apex Court on 18-12-2019, on the grounds that the submissions and evidences put forward in the Review Plea were almost a repetition of what were argued in the Appeal and as such dismissed by the Trial Court, the High Court and the Apex Court.

Thereafter, the Additional Sessions Judge, Patiala House Court in Delhi had issued Death Warrants to all 4 Convicts vide Order dated 07-01-2020 for their hanging on 22-01-2020 at 7 AM. The said Order dated 07-01-2020 has been challenged by one of the 4 Convicts, Mukesh Singh, in the Delhi High Court on the ground that the Convicts are still left with a remedy of filing mercy petition with the President, but the  issue of Death Warrants would render their Constitutional Right of seeking mercy from the President infructuous. But the Delhi High Court dismissed their challenge on 15-01-2020, directing them to approach the Sessions Court which passed the Impugned Orderdated 07-01-2020.

Meanwhile, two of the Convicts, Mukesh Singh and Vinay Sharma had filed Curative Petitions in the Supreme Court to review the Order of Death Penalty upheld by the Supreme Court on 05-05-2017, and reconsider their submissions. But a 5-Judge Bench of the Apex Court dismissed both the Curative Petitions on 14-01-2020, on the grounds that there was no violation of principles of natural justice in dismissing the Review Petitions and upholding the Order of Death Penalty on 05-05-2017, and there were no additional contentions of the Convicts in the Curative Petitions that had not been dealt at length by the courts, etc.

Recently, one of the Convicts, Mukesh Singh, had filed a Mercy Petition on 14-01-2020, which has eventually been rejected by the President on 17-01-2020, as per various newspaper reports.

Thus, rest of the Convicts have been left with the following legal remedies which may be exhausted before they are hanged to death on 22-01-2020 at 7 AM:

1)Vinay Sharma- Await the decision of the President about grant or rejection of his Mercy Plea dated 08-11-2019

2) Akshay Thakur and Pawan Gupta –

i) Curative Petition may be filed in the Supreme Court to review the Order of Death Penalty upheld by the Apex Court on 05-05-2017

ii) Mercy Petition may be filed with the President

Thus, amid nationwide outrage over multiple cases of rape and murder, the country awaits the decision of the President in the mercy petitions, if at all filed by the other Convicts, and the execution of their death sentence on 22-01-2020 at 7 AM in Tihar Jail.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

GUEST POST CONTRIBUTION:

ALL YOU NEED TO KNOW ABOUT THE CITIZENSHIP AMENDMENT ACT 2019

The Constitution of India under Part II (Article 5-11) provides provisions regarding citizenship. Article 11 gives the Parliament the power to make provisions regarding the acquisition and termination of citizenship and other related matters. However, the Parliament must not derogate anything contained in the Part II while making such provisions. The Citizenship Act of 1955 (further referred to as ‘the Act’) was the result of such power of the Parliament as provided by the Constitution. Thereafter, the Act has been amended in 1986, 1992, 2003, 2005 and 2015.

Post-independence, India has witnessed an influx of religious minorities from neighboring countries whose fundamental rights have been suppressed. Recently, a new Citizenship Amendment Bill, 2019 was introduced and passed by the Lok Sabha on 9th December 2019, passed by Rajya Sabha on 11th December 2019 and the President gave his assent on 12th December 2019 (further referred to as ‘the Amendment Act’).

Following are the amendments which have been brought into the Act by the 2019 Amendment Act:

1) Definition of “illegal migrant”

Section 2(1) (b) of the Act provides that a foreigner who has entered into India­­-

  • without a valid passport or other prescribed travel documents, or
  • with a valid passport or other travel documents whose permitted time limit has expired

will be considered as “illegal migrant”.

The 2019 Amendment made certain exclusions to the definition of illegal migrant which are:

Every person belonging to any of the religious communities of Hindu, Sikh, Buddhist, Jain, Parsi or Christian from Afghanistan, Bangladesh or Pakistan who has entered into India on or before 31st December 2014.

Further, the insertion of Section 6B allows citizenship to those excluded from the definition of illegal migrant by granting a certificate of registration or naturalization and any proceeding pending against any such person concerning illegal migration or citizenship shall stand abated.

Also, Section 6B(4) provides that tribal areas of Assam, Meghalaya, Mizoram or Tripura which are specified in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” as notified under the Bengal Eastern Frontier Regulation, 1873 are exempted from applying the provisions regarding citizenship provided under the 2019 Amendment.

Additionally, the amendment, by the addition of Clause (eei) in Section 18(2), provides that the Central Government may make rules regarding conditions, restrictions and manner for granting certificate under Section 6B(1) for fulfilling the purpose of this amendment.

2) Cancellation of Registration as Overseas Citizen of India

Among various other grounds for the cancellation of registration as an OCI provided under Section 7D, another ground has been added through Section 7D(da). It says that the registration of an OCI cardholder may be cancelled if he violates any of the provisions of the Act or any other law in force- but only after being given a reasonable opportunity of being heard.

Attention must be brought to this amendment as it provides wide discretion to the Central Government without prescribing for any further rule in this regard.

3) Amendment to the Third Schedule

The Third Schedule of the Act specifies qualifications for naturalization of a person. Amendment to Clause (d) by the insertion of proviso states that persons belonging to the above-mentioned six communities from Afghanistan, Bangladesh or Pakistan are only required to-

  • have resided in India, or
  • to have been in the service of Government in India

For the aggregate period of at least five years during the fourteen years immediately preceding twelve months preceding the date of application made for the grant of certificate of naturalization.

This has resulted into the effect that any person belonging to any of these six communities from any of these three countries who has entered into, and has been residing in India on or before 31st December 2014 shall be eligible to be a citizen of India. Before this amendment, the said aggregate period was eleven years for every such person otherwise eligible for naturalization.

Since the Bill has been introduced in the Lok Sabha, people including political parties from opposition and students’ bodies all over the country have started protesting and showing their outrage towards the Bill. However, the reasons for these protests are two-fold:

Firstly, protests are coming up from Assam and other Northeast states as they fear that it would result in an influx of religious minorities from Bangladesh into their states which will destroy the ethnic culture and interests of the indigenous communities in the Northeast.

Secondly, people from all over the nation are coming up for protest mainly because of non-inclusion of the Muslim community into the special provision regarding citizenship which has been granted to other six religious minorities from the three neighboring Islamic nations. The protesters consider it to be violative of Article 14 of the Constitution and its basic structure which provides for India to be a secular State.

However, these protests have turned up into violence on the part of both the protesters as well as the Policing Department who were supposed to control the situation. The protests have taken up this form because majority of people- including the protesters from various students’ bodies and universities across the nation- do not know exactly what amendments have been brought into the Act and what is more saddening is the fact that they do not even care to get into the root of their causes. They are simply listening and responding to the provocations by their religious or political heads and are just being the sheep in the herd. Such action is impractical and is leading us to nowhere. The situation has even more aggravated by the spread of rumors and fake news over various social media platforms also by the news media and political leaders from various political parties as such things are blatantly being followed and shared by the general public. This has made the situation worse and led to the increased gravity of concern needed for what the nation is currently facing.

Therefore, certain clarifications are the need of the hour in this regard. Firstly, the amendment does not change or remove other ways available in the Act for the grant of citizenship to the people belonging to any faith or religion. It has only provided for special provision for citizenship to religious minorities who have fled their country namely Afghanistan, Bangladesh and Pakistan from religious persecution or from the fear of such religious persecution. Secondly, the amendment only deals with providing citizenship to religious minorities; the procedure for persecuted Muslims to seek asylum in India is still the same and the Amendment Act does not prohibit in any way the grant of asylum to Muslims.

Among other debates over the Amendment Act, one was that not including religiously persecuted Sri Lankan Tamil Hindus into the Amendment Act is discriminatory to which Mr. Harish Salve has very well put forward as to why it is not the case, saying- “a law which addresses one evil need not address all possible evils or similar evils- that’s a well-settled law under Article 14 and that is never a ground to challenge a law”.

Amidst these protests, the Supreme Court finally agreed to hear the petitions challenging the Citizenship (Amendment) Act, 2019 on December 18, where it refused to stay its implementation. The Court, then, issued a formal Notice to the Government where it has admitted 59 Petitions filed by people challenging the constitutional validity of the Amendment Act and the Apex Court has further agreed to hear these Petitions on 22nd January 2020.

Payal Goyal

SUPREME COURT UPHOLDS RETROSPECTIVE APPLICABILITY OF DEPOSITS MADE IN CONVICTION CASES UNDER NEGOTIABLE INSTRUMENTS ACT

Recently, the Supreme Court of India had passed a Judgment dated 29-05-2019 in Surinder Singh and others vs Virender Gandhi 2019, whereby, the Apex Court held that Section 148 of the Negotiable Instruments Act 1881 (Act) as amended in 2018 would have a retrospective effect to cases where appeals lie from orders of conviction for offence under Section 138 of the Act, arising out of criminal proceedings initiated prior to the 2018 Amendment.

Herein, the Respondent had filed a complaint against the Accused-Appellants in the Trial Court pertaining to dishonour of cheque for insufficiency, etc., of funds in their account, sometime prior to 02-08-2018 (Complaint). During the pendency of the said proceedings, the Act was amended on 02-08-2018 (Amended Law), whereunder, Section 148 provided that the Appellate Courts may direct the appellant (accused) to deposit at least 20% of fine imposed by a trial court.

Thereafter, the Trial Court convicted the Accused-Appellants under Section 138 of the Act, and thereby, imposed a punishment of 2 years imprisonment with fine. Thereafter, in an Appeal before the Additional Sessions Judge, Panchkula, the Appellate Court suspended the sentence and directed the Accused-Appellants to deposit 25% of the fine amount in the Court as per Section 148 of the Amended Law. Subsequently, in an Appeal before the Punjab and Haryana Court, the Appellate Court upheld the said Order of the Additional Sessions Judge, Panchkula.

Aggrieved by the said Order of the High Court, the Accused-Appellants filed an appeal before the Supreme Court. Herein, the Accused argued that the provisions of the Amended Law would not be applicable to criminal proceedings that were initiated under the older Act. But the Supreme Court rejected the said contention on the following grounds:

1- The object of introducing the Amended Law is speedy disposal of cases relating to offence of dishonour of cheques. Earlier, a convict under Section 138 of the Act could easily file an appeal and obtain a stay on the proceedings. As a result of which the payee of the dishonoured cheque had to suffer considerable loss of time and money due to such frivolous and unscrupulous litigation. Thus, the Amended Law provided for certain amendments such as deposit of at least 20% of fine imposed by trial court, etc, in order to strengthen the credibility of cheques and to develop the trade and commerce sector.

2- That although at the time when the Complaint was filed, the Amended Law was not in force, but by the time the Appeals were filed and orders were passed by the Appellate Courts, the Amended Law had already come into force.

Thus, based on the aforesaid grounds, the Supreme Court held that Section 148 of the Amended Law would have a retrospective effect and be applicable to cases where appeals have been filed against orders of conviction for offence under Section 138 of the Act, arising out of criminal proceedings initiated prior to the Amended Law, i.e. on or before 01-08-2018. Therefore, the Supreme Court upheld the Orders of both the Appellate Courts and directed the Accused-Appellants to deposit 25% of the amount of fine imposed by the Trial Court in this case.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

CITIZENSHIP AMENDMENT ACT, 2019, COMES INTO FORCE

Notification dated 10th January, 2020 published in the Official Gazette by the Central Government notifies provisions of Citizenship Amendment Act (CAA) to be enforced from the date of Notification.

The Citizenship Amendment Bill was passed by the Lok Sabha on 10th December, 2019 just a day after it was introduced in the Lok Sabha. Also, Rajya Sabha passed it a day later. The Bill received the assent of the President on 12th December, 2019 thereby becoming an Act of Parliament.

This particular amendment to the Citizenship Act, 1955 relaxes the grant of citizenship for Non- Muslim migrants from Pakistan, Bangladesh and Afghanistan who had entered India before December 21, 2014.

This relaxation to Non- Muslims has been granted because they have sought refuge in India from the countries which have declared themselves to be Islamic countries. Considering this it cannot be termed to be unconstitutional. Protests have broken out across India, a few of them extremely violent against the Act. The most important thing to keep in mind is that the CAA does not apply to Indian Citizens. They are completely unaffected by it. The Citizenship Amendment Act seeks to grant Indian Citizenship to foreigners who had suffered persecution on the grounds of religion in the three neighbouring countries.

As Pakistan, Bangladesh and Afghanistan have declared themselves to be Islamic countries, Non-Muslims residing there are subjected to multiple persecutions. According to a Report of Human Rights Group Amnesty International it has been pointed out that Pakistan’s blasphemy laws, are vaguely formulated and arbitrarily enforced by the Police and Judiciary in such a way to harass and persecute religious minorities. According to United Nations data the number of refugees in India went up to 17% between 2016-2019.

Same is the case with Bangladesh and Afghanistan. People who had recently migrated from these Islam dominated countries have complained as to how there were persecuted there and what atrocities were committed on them.

The point of consideration which people need to understand is that the CAA does not target any religious community coming from the above mentioned three countries. It only provides a mechanism for some migrants who may otherwise be called ‘illegal’ providing them an opportunity to apply for Indian citizenship provided they meet certain conditions. Also, the CAA protects the interests of the tribal and people of North Eastern Region of India by excluding areas under the Sixth Schedule of the Constitution of India. Migrants living in these areas will not be able to apply for Indian citizenship.

As per the proviso inserted in section 2(1)(b), it makes migrants belonging to Hindu, Sikh, Buddhist, Parsi, Jain and Christians religions from Pakistan, Bangladesh and Afghanistan eligible for citizenship by naturalization if they can establish their residency in India for five years instead of existing eleven years.

The Government is yet to frame rules, in this regard detailing the procedure to be followed by the Authorities for grant of citizenship to such migrants who have sought refuge in India.

Aakritee Gambhir

Associate

The Indian Lawyer

ALLAHABAD HIGH COURT HAS REGISTERED SUO MOTO PIL PETITION ON INTERNET SHUTDOWN IN UTTAR PRADESH

Recently, the Allahabad High Court has registered a suo moto cognizance of a Public Interest Litigation (PIL) Petition with reference to shutdown of internet services in the State of Uttar Pradesh on 20-12-2019.

Number of Lawyers led by Sri Ravi Kiran Jain, Senior Advocate, Sri Anurag Khanna, Senior Advocate and Sri Rakesh Pande, Senior Advocate and President of the Allahabad High Court Bar Association have mentioned that the judicial system would be adversely affected as it is dependent on the internet services for publication and distribution of cause lists, uploading and downloading of orders, checking of case status, display board, etc. Further, not only the judicial functioning, but the banking activities, administrative activities, educational activities, medical activities, traffic movement, and many other Government and public activities would suffer major setbacks due to internet shutdown. According to the Learned Advocates, there may be certain administrative exigencies for suspending the internet services, but that must be a rarest of rare phenomenon.

Moreover, the right to have continuous internet services in the present era is an extension of the right to live and, as such, discontinuation of that is in violation of Article 21 of the Constitution of India.

Having considered all aspects of the matter, the Hon’ble Chief Justice of Allahabad High Court, Justice Govind Mathur pointed out that we deem it appropriate to direct the Registry to register a writ petition in PIL jurisdiction in the name of “Reference to the discontinuation of Internet services by the State Authorities”. Notice be issued to the State of Uttar Pradesh.

GOVIND GUPTA

ASSOCIATE

THE INDIAN LAWYER

MINISTRY OF RAILWAYS HAS ANNOUNCED MEASURES TO IMPROVE DISASTER MANAGEMENT TECHNIQUES

The Ministry of Railways has recently announced certain measures to ensure speedy and efficient rescue, relief and restoration at the time of accidents and disasters on 02-01-2020. The Indian Railways has proposed to take the following initiates to achieve better disaster management results:

  1. Enhance the resources, and equipments, etc required for disaster management
  2. Conduct periodic mock drills with National Disaster Response Force (NDRF) for training personnel and for ensuring preparedness during disasters
  3. Coordination with other agencies of Central and State Governments
  4. Replace locomotive hauled Accident Relief Medical Vans with Self-Propelled Accident Relief Medical Vans to improve response during disaster
  5. Launch of high-speed Self-Propelled Accident Relief Trains with speed of 160 kmph, 176 Accident Relief Trains and 86 Accident Relief Medical Vans
  6. Procurement of 175 Tonnes cranes and 90 Break Down Cranes for restoration purpose
  7. Training of 6000 trained breakdown staff
  8. Procurement and import of accident relief medical equipments for rescue, relief and restoration including first aid box, body bags, foldable chairs, portable fire extinguishers, operation theatre equipments, emergency pneumatic air bags for lifting, generators an electrical equipment, fire-fighting equipments, signaling and communication equipments, etc.
  9. Integration of multiple railway helpline numbers into a single number 139 with for quick grievance redressal and enquiry by passengers during their journey. The said emergency railway number 139 has the following features and benefits:
  • This helpline 139 would be in 12 languages
  • It would be an Interactive Voice Response System
  • The helpline number can be dialled from any telephone, smart phone, low-end phones, etc
  • Passengers looking for any kind of railway assistance may avail the simpler helpline option including security and medical assistance, enquiry about PNR status, arrival/departure of the train, accommodation, fare, ticket booking, ticket cancellation, wake up alarm facility, destination alert, wheel chair booking, meal booking, etc, catering and general complaints, queries during accident, customer care, etc
  • In view of launch of emergency railway number 139, the Indian Railways has discontinued the earlier railway helpline numbers including 138 (for general complaints), 1072 (for accidents and safety), 9717630982 (for SMS complaints), 58888 / 138 (for clean my coach), 152210 (for vigilance), 1800111321 (for catering services).

Thus, the aforesaid measures would enable the Indian Railways to improve the disaster management system for speedy and competent rescue, relief and restoration at the time of accidents and disasters.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer