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

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

All ReviewĀ Petitions in death penalty cases are now heard by the Supreme Court in openĀ court after its judgment in Md. Arif.Ā It is an accepted fact that trained legal minds can arrive at diametricallyĀ opposite conclusions in a criminal case even when someone’s life is at stake. ThereĀ have been instances where people have been condemned to death by a narrowĀ majority (3:2) in the Supreme Court.[1]
The logic behind the majority judgment in Md.Ā Arif is sound and cannot be faulted. However, the conversion of ReviewĀ Petitions in Death Penalty cases into deĀ novo hearings on both fact and law is not what Md. ArifĀ ever intended, but unfortunately that is exactly what hadĀ 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 CourtĀ condemning an accused to death can be overturned only if it can be pointed outĀ during the hearing of the Review Petition that there is an ā€˜error apparent onĀ 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 25.3.2015Ā 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 difficultĀ to spot an error apparent on the face of the record? I am conscious of the factĀ that a death sentence is irreversible, but does it really require conversion ofĀ Review Petitions into extensive hearings putting strain on an alreadyĀ over-burdened docket where millions are waiting for their turn? I think that theĀ majority in Md. Arif should have madeĀ it clear that the arguments will only be addressed to show the ā€˜error apparentĀ on the face of the record’, and not to agitate the matter all over again. ThisĀ caveat in the judgment would have gone a long way in ensuring that ReviewĀ Petitions in death penalty cases don’t lose their fundamental character. TheĀ power of the spoken word must show its effect within 30 minutes, for otherwiseĀ it has the potential of making a mockery of the process. Yakub Abdul Razak Memon’sĀ lawyers were not able to show any error apparent on the face on the record inĀ the judgment confirming his death sentence. But a curative petition was filed.Ā The ritual had to be followed after all. It goes without saying that Yakub AbdulĀ Razak Memon’s curative petition was an abuse of process.
It is anĀ established position of law that there are no implied or express limitations onĀ the inherent powers of the Supreme Court of India. The judgment of the SupremeĀ Court in Rupa Ashok Hurra v. Ashok Hurra,Ā (2002) 4 SCC 388had specifiedĀ requirements to entertain curative petitions under its inherent power so thatĀ floodgates are not opened for filing a second review petition as a matter ofĀ course in the guise of a curative petition under inherent power.[4]
The first instance of the application of RupaĀ Ashok Hurra is to be found in StateĀ of Madhya Pradesh v. Sughar Singh & Ors., (2010) 3 SCC 719. This was aĀ fairly straightforward application of the judgment in Rupa Ashok Hurra as the acquittal of four persons by the High CourtĀ of Madhya Pradesh was reversed by the Supreme Court without affording them anĀ opportunity of being heard. Accordingly, the Supreme Court recalled itsĀ judgment in State of MP v. Sughar Singh,Ā (2008) 15 SCC 242 and restored the Criminal Appeals to their original numbersĀ for fresh hearing after issuing fresh notices to all the parties that were toĀ 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.,Ā (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 veryĀ simple. In Bhaskar Lal Sharma, theĀ Supreme Court did not recall its final judgment on a mere technicality likeĀ violation of natural justice or bias but on a fundamental error of law. TheĀ Curative Bench held that the special leave petition was filed against theĀ initial order summoning the accused to trial, and it was wrong on part of theĀ Court to express its opinion at an early stage on whether the allegationsĀ making a case under S. 498-A of IPC had been established or not. Accordingly,Ā the earlier judgment in Bhaskar LalĀ Sharma v. Monica, (2009) 10 SCC 604 was recalled and the criminal appealsĀ were restored for de novo hearing. TheĀ third instance of the application of RupaĀ Ashok Hurra is to be seen in NavneetĀ Kaur v. State (NCT of Delhi) & Anr., (2014) 7 SCC 264. Navneet Kaur’sĀ curative petition seeking the limited relief of setting aside the deathĀ sentence imposed upon her husband by commuting it to imprisonment for life onĀ the ground of delay of 8 years in the disposal of mercy petition was allowed byĀ the Supreme Court due to three basic reasons. First, the ratio laid down in Devender Pal Singh Bhullar v. State (NCT ofĀ Delhi), (2013) 6 SCC 195 was held to be per
incuriam
by the larger Bench in ShatrughanĀ Chauhan v. Union of India, (2014) 3 SCC 1. Secondly, the then AttorneyĀ General had graciously admitted before the Court that in view of Shatrughan Chauhan, the death sentenceĀ awarded to Bhullar was liable to be commuted to life imprisonment. Thirdly, theĀ report given by the Institute of Human Behaviour and Allied Sciences had establishedĀ that Bhullar was suffering from acute mental illness which provided anotherĀ reason for commuting the death sentence as per Shatrughan Chauhan.

It remains to be seen how exactly the judgment in Suresh Kumar Koushal Ā can be recalled by the Supreme Court inĀ view of the limited extent to which RupaĀ Ashok Hurra has been applied so far. The judgment of the Supreme Court in A.R. Antulay v. R.S. Nayak, (1988) 2 SCCĀ 602 (ā€œA.R. Antulay (II)ā€) is often cited to argue that the Supreme Court canĀ exercise its inherent powers to any extent in order to recall or modify or setĀ aside an erroneous judgment while dealing with a curative petition. However,Ā this is not entirely free from doubt. It is pertinent to point out that theĀ Supreme Court has held in Rupa AshokĀ Hurra as under (para. 45):
ā€œInĀ AntulayĀ caseĀ the majority in theĀ seven-Judge Bench of this Court set aside an earlier judgment of theĀ Constitution Bench in a collateralĀ proceeding on the view that the order was contrary to the provisions ofĀ the Act of 1952; in the background of that Act without precedent and inĀ violation of the principles of natural justice, which needed to be corrected exdebito justitiae.ā€

In my view, theĀ reliance on A.R. Antulay (II) is misplaced while dealing with theĀ scope of curative petitions after RupaĀ Ashok Hurra. Unlike the curative petitions in Suresh Kumar Koushal, the challenge to the correctness of R.S. Nayak v. A.R.Ā Antulay, (1984) 2 SCC 183 (ā€œA.R. Antulay (I)ā€) was made in collateral proceedings in A.R. Antulay (II). A.R. Antulay (II) does not deal with aĀ situation where a final judgment was sought to be recalled or set aside afterĀ the dismissal of the review petition. Moreover, in the recent past, the SupremeĀ Court has refused to rely on A.R. Antulay(II) thereby giving the impressionĀ that it is a precedent that turned on its peculiar facts and circumstances, andĀ the principles laid down therein were stated at a level of generality whichĀ might not be strictly applicable in other cases.[5] There are several conclusions in Suresh Kumar Koushal (unlike Sughar Singh, Bhaskar Lal Sharma, and NavneetĀ Kaur) that cannot be recalled orĀ set aside without providing extensive reasons. Only time will tell if theĀ Constitution Bench will do that.
(Shivendra Singh is a lawyer practicing in theĀ Supreme Court of India.)
________
[1]
See Tarachand Damu Sutar v. The State of Maharashtra, AIR 1962 SC 130.
[2]
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.
[3]
No reason was given in the order as to why the outer
limit of 30 minutes prescribed in Md.
Arif
was not followed.
[4]
Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388, para. 50.
[5]
See Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470, para. 176.
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Jeetendra Kumar
Jeetendra Kumar
6 years ago

I would like to thank you for the efforts you have made in writing this article and i am hoping the same best work from you in the future as well.

criminal lawyer