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

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 a note explains that the curative petitions against Suresh Kumar Koushal v. Naz Foundation, (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. Arif is sound and cannot be faulted. However, the conversion of Review Petitions in Death Penalty cases into de novo 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 388had 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 Delhi), (2013) 6 SCC 195 was held to be per
incuriam 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 Hurra as under (para. 45):

“In Antulay case the majority in the seven-Judge Bench of this Court set aside an earlier judgment of the Constitution Bench in a collateral proceeding 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 exdebito 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. Antulay, (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 Kaur) that cannot be recalled or set aside without providing extensive reasons. Only time will tell if the Constitution Bench will do that.