Special Leave Petition: Articles 136
The Supreme Court is authorised to grant in its discretion special leave to appeal from any judgement in any matter passed by any court or tribunal in the country (except military tribunal and court martial). This provision contains the four aspects as under:
(i)It is a discretionary power and hence, cannot be claimed as a matter of right.
(ii)It can be granted in any judgement whether final or interlocutory.
(iii)It may be related to any matter—constitutional, civil, criminal, income-tax, labour, revenue, advocates, etc.
(iv)It can be granted against any court or tribunal and not necessarily against a high court (of course, except a military court).
Special leave to appeal is filed before the Supreme Court under Article 136 of the Constitution.
Thus, the scope of this provision is very wide and it vests the Supreme Court with a plenary jurisdiction to hear appeals. On the exercise of this power, the Supreme Court itself held that ‘being an exceptional and overriding power, it has to be exercised sparingly and with caution and only in special extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula or rule
The concept originated from the 2002 case of Rupa Ashok Hurra Vs. Ashok Hurra and Anr. over the question whether an aggrieved person is entitled to any relief against the final judgment/order of the Supreme Court after the dismissal of a review petition.
The court used the Latin maxim “actus curiae neminem gravabit”, which means that an act of the court shall prejudice no one. Thus, it applies when the court is bound to undo a wrong done to a party by the act of court itself.
The Supreme Court held that it may reconsider its judgements in order to prevent abuse of its process and to cure gross miscarriage of justice.
A curative petition is a judicial innovation and a new concept in the Indian legal system.
It is the last and final resort to the judicial remedy of any grievances which is not normally given an open-court hearing.
Curative petitions are heard by the top three judges including the Chief Justice of India plus the judges who dismissed the review petition.
To entertain the curative petitions, the Supreme Court has laid down specific conditions. Its laid down in order The requirements which are needed in order to accept the curative petitions are:
- The petitioner will have to establish that there was a genuine violation of principles of natural justice and fear of the bias of the judge and judgement that adversely affected him.
- The petition shall state specifically that the grounds mentioned had been taken in the review petition and that it was dismissed by circulation.
- The curative petition must accompany certification by a senior lawyer relating to the fulfillment of the above requirements.
- The petition is to be sent to the three senior most judges and judges of the bench who passed the judgement affecting the petition, if available.
- If the majority of the judges on the above bench agree that the matter needs hearing, then it would be sent to the same bench (as far as possible).
- The court could impose “exemplary costs” to the petitioner if his plea lacks merit.
Article 137 of the Constitution provides that subject to provisions of any law and rule made under Article 145 the Supreme Court of India has the power to review any judgement pronounced (or order made) by it. Under Supreme Court Rules, 1966 such a petition needs to be filed within 30 days from the date of judgement or order. It is also recommended that the petition should be circulated without oral arguments to the same bench of judges that delivered the judgement (or order) sought to be reviewed.
Furthermore, even after dismissal of a review petition, the SC may consider a curative petition in order to prevent abuse of its process and to cure gross miscarriage of justice
- Scope of Review
- The Court has the power to review its rulings to correct a “patent error” and not “minor mistakes of inconsequential import”. A review is by no means an appeal in disguise.
- That means the Court is allowed not to take fresh stock of the case but to correct grave errors that have resulted in the miscarriage of justice.
- Filing Review Petition
- As per the Civil Procedure Code and the Supreme Court Rules, any person aggrieved by a ruling can seek a review. This implies that it is not necessary that only parties to a case can seek a review of the judgment.
- A Review Petition has to be filed within 30 days of the date of judgment or order.
- In certain circumstances, the court can condone the delay in filing the review petition if the petitioner can establish strong reasons that justify the delay.
As per the Constitutional framework in India, mercy petition to the President is the last constitutional resort a convict can take when he is sentenced by the court of law. A convict can present a mercy petition to the President of India under Article 72 of the Constitution of India.
- Article 72 of the Constitution provides that the President shall have the power to grant pardon, reprieve, respite or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence
- in all cases where the punishment or sentence is by a Court Martial;
- in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
- in all cases where the sentence is a sentence of death.
- Similarly, under Article 161 the Governor has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends
Procedure for handling Mercy Petitions
There is no written procedure for dealing with mercy petitions.
A convict under the sentence of death is allowed to make the petition within a period of seven days after the date on which the Superintendent of jail informs him about the dismissal of the appeal by the Supreme Court.
The petitions are received by the President’s secretariat on behalf of the President, which is then forwarded to the Ministry of Home Affairs for seeking the advice of the Cabinet.