The Koushal Curative and Death Penalty Review Petitions: Inherent Powers & Finality of Judgments

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(Guest post by Shivendra Singh)
This note is a comment on the inherent powers of the Supreme
Court of India to modify, recall and set aside its final judgments and orders. Part
I of the note explains how the limited oral hearing in Review Petitions envisaged
in Md. Arif @ Ashfaq v.
Registrar, Supreme Court of India & Ors.
, (2014) 9 SCC 737 was
converted into a full-fledged oral hearing in Yakub Abdul Razak Memon v. State of Maharashtra. Part II of the
note explains that the curative petitions against Suresh Kumar Koushal v. Naz
, (2014) 1 SCC
1 will require the Supreme Court to go beyond the three instances in the past wherein
it has allowed curative petitions.

All Review
Petitions in death penalty cases are now heard by the Supreme Court in open
court after its judgment in Md. Arif.
It is an accepted fact that trained legal minds can arrive at diametrically
opposite conclusions in a criminal case even when someone’s life is at stake. There
have been instances where people have been condemned to death by a narrow
majority (3:2) in the Supreme Court.[1]
The logic behind the majority judgment in Md.
is sound and cannot be faulted. However, the conversion of Review
Petitions in Death Penalty cases into de
hearings on both fact and law is not what Md. Arif ever intended, but unfortunately that is exactly what had
happened in one of the most high-profile cases of 2015.[2]
The reader must keep one thing in mind. A final judgment of the Supreme Court
condemning an accused to death can be overturned only if it can be pointed out
during the hearing of the Review Petition that there is an ‘error apparent on
the face of the record’. Yakub Abdul Razak Memon’s Review Petition was extensively
heard by the Supreme Court on 11.3.2015, 18.3.2015, 24.3.2015, and 25.3.2015
before it was dismissed on 9.4.2015.[3]
The outer limit of 30 minutes of limited oral hearing prescribed in Md. Arif was dispensed with and the
Review Petition was heard for more than 10 hours. Should it have been that difficult
to spot an error apparent on the face of the record? I am conscious of the fact
that a death sentence is irreversible, but does it really require conversion of
Review Petitions into extensive hearings putting strain on an already
over-burdened docket where millions are waiting for their turn? I think that the
majority in Md. Arif should have made
it clear that the arguments will only be addressed to show the ‘error apparent
on the face of the record’, and not to agitate the matter all over again. This
caveat in the judgment would have gone a long way in ensuring that Review
Petitions in death penalty cases don’t lose their fundamental character. The
power of the spoken word must show its effect within 30 minutes, for otherwise
it has the potential of making a mockery of the process. Yakub Abdul Razak Memon’s
lawyers were not able to show any error apparent on the face on the record in
the judgment confirming his death sentence. But a curative petition was filed.
The ritual had to be followed after all. It goes without saying that Yakub Abdul
Razak Memon’s curative petition was an abuse of process.

It is an
established position of law that there are no implied or express limitations on
the inherent powers of the Supreme Court of India. The judgment of the Supreme
Court in Rupa Ashok Hurra v. Ashok Hurra,
(2002) 4 SCC 388 had specified
requirements to entertain curative petitions under its inherent power so that
floodgates are not opened for filing a second review petition as a matter of
course in the guise of a curative petition under inherent power.[4]
The first instance of the application of Rupa
Ashok Hurra
is to be found in State
of Madhya Pradesh v. Sughar Singh & Ors
., (2010) 3 SCC 719. This was a
fairly straightforward application of the judgment in Rupa Ashok Hurra as the acquittal of four persons by the High Court
of Madhya Pradesh was reversed by the Supreme Court without affording them an
opportunity of being heard. Accordingly, the Supreme Court recalled its
judgment in State of MP v. Sughar Singh,
(2008) 15 SCC 242 and restored the Criminal Appeals to their original numbers
for fresh hearing after issuing fresh notices to all the parties that were to
be heard. The second instance of the application of Rupa Ashok Hurra principle is to be found in National Commission for Women v. Bhaskar Lal Sharma & Ors.,
(2014) 4 SCC 252 which is the most favourable precedent that could be cited in
favour of the curative petitions against Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1. The reason is very
simple. In Bhaskar Lal Sharma, the
Supreme Court did not recall its final judgment on a mere technicality like
violation of natural justice or bias but on a fundamental error of law. The
Curative Bench held that the special leave petition was filed against the
initial order summoning the accused to trial, and it was wrong on part of the
Court to express its opinion at an early stage on whether the allegations
making a case under S. 498-A of IPC had been established or not. Accordingly,
the earlier judgment in Bhaskar Lal
Sharma v. Monica
, (2009) 10 SCC 604 was recalled and the criminal appeals
were restored for de novo hearing. The
third instance of the application of Rupa
Ashok Hurra
is to be seen in Navneet
Kaur v. State (NCT of Delhi) & Anr
., (2014) 7 SCC 264. Navneet Kaur’s
curative petition seeking the limited relief of setting aside the death
sentence imposed upon her husband by commuting it to imprisonment for life on
the ground of delay of 8 years in the disposal of mercy petition was allowed by
the Supreme Court due to three basic reasons. First, the ratio laid down in Devender Pal Singh Bhullar v. State (NCT of
, (2013) 6 SCC 195 was held to be per
by the larger Bench in Shatrughan
Chauhan v. Union of India
, (2014) 3 SCC 1. Secondly, the then Attorney
General had graciously admitted before the Court that in view of Shatrughan Chauhan, the death sentence
awarded to Bhullar was liable to be commuted to life imprisonment. Thirdly, the
report given by the Institute of Human Behaviour and Allied Sciences had established
that Bhullar was suffering from acute mental illness which provided another
reason for commuting the death sentence as per Shatrughan Chauhan

It remains to be seen how exactly the judgment in Suresh Kumar Koushal  can be recalled by the Supreme Court in
view of the limited extent to which Rupa
Ashok Hurra
has been applied so far. The judgment of the Supreme Court in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC
602 (“A.R. Antulay (II)”) is often cited to argue that the Supreme Court can
exercise its inherent powers to any extent in order to recall or modify or set
aside an erroneous judgment while dealing with a curative petition. However,
this is not entirely free from doubt. It is pertinent to point out that the
Supreme Court has held in Rupa Ashok
as under (para. 45):

“In Antulay
 the majority in the
seven-Judge Bench of this Court set aside an earlier judgment of the
Constitution Bench in a collateral
on the view that the order was contrary to the provisions of
the Act of 1952; in the background of that Act without precedent and in
violation of the principles of natural justice, which needed to be corrected ex
debito justitiae.

In my view, the
reliance on A.R. Antulay (II) is misplaced while dealing with the
scope of curative petitions after Rupa
Ashok Hurra
. Unlike the curative petitions in Suresh Kumar Koushal, the challenge to the correctness of R.S. Nayak v. A.R.
, (1984) 2 SCC 183 (“A.R. Antulay (I)”) was made in collateral proceedings in A.R. Antulay (II). A.R. Antulay (II) does not deal with a
situation where a final judgment was sought to be recalled or set aside after
the dismissal of the review petition. Moreover, in the recent past, the Supreme
Court has refused to rely on A.R. Antulay
(II) thereby giving the impression
that it is a precedent that turned on its peculiar facts and circumstances, and
the principles laid down therein were stated at a level of generality which
might not be strictly applicable in other cases.[5] There are several conclusions in Suresh Kumar Koushal (unlike Sughar Singh, Bhaskar Lal Sharma, and Navneet
) that cannot be recalled or
set aside without providing extensive reasons. Only time will tell if the
Constitution Bench will do that.

(Shivendra Singh is a lawyer practicing in the
Supreme Court of India.)

See Tarachand Damu Sutar v. The State of Maharashtra, AIR 1962 SC 130.
In fact, Yakub Abdul Razak Memon was one of the
petitioners before the Supreme Court in a writ petition connected to the lead
writ petition of Md. Arif @Ashfaq.
No reason was given in the order as to why the outer
limit of 30 minutes prescribed in Md.
was not followed.
Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388, para. 50.
See Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470, para. 176.

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