Tuesday, July 28, 2015

When enthusiasm becomes subversion

 Yakub Memon's case was taken up by a Division Bench of the Supreme Court consisting of Justices A.R.Dave and Kurian Joseph on 27th July. This petition has been filed after the normally available judicial remedies , that is Review Petition and Curative Petition, were dismissed by the Supreme Court.
According to "Supreme Court of India: Practice and Procedure", a curative petition has to be circulated among three senior most judges and such serving judges who were members of the Bench which passed the judgement / order, subject matter of the petition. The relevant extract is given below:

"F. Curative petition:
As laid down by this Court in the case of Rupa Ashok Hurrah
vs. Ashok Hurrah 2002 (4) SCC 388, even after dismissal of a review
petition under Article 137 of the Constitution, Supreme Court, may
entertain a curative petition and reconsider its judgment/order, in
exercise of its inherent powers in order to prevent abuse of its process,
to cure gross miscarriage of justice and such a petition can be filed
only if a Senior Advocate certifies that it meets the requirements of this
case. Such a petition is to be first circulated, in chambers, before a
Bench comprising of three senior most judges and such serving judges
who were members of the Bench which passed the judgment/order,
subject matter of the petition."

There is no reference to Curative Petition in our Constitution. This additional judicial remedy has been introduced by the apex court. Objective of this provision is to prevent miscarriage of justice and not to use this tool as a dilatory weapon.

The extract given above is clear that any curative petition has to be circulated, apart from three senior most judges, among members of the Bench which passed the judgement which is the subject matter of the petition. The reference here is not to the judgement on the review petition, but the judgement on the original petition.

It is easy for an enthusiast to get carried away. This is what happened to Justice Kurian Joseph. In the process, justice was inadvertently subverted. Justice Dave made a desperate observation that such interpretations as made by Justice Kurian Joseph will only lead to inconclusive judicial proceedings. (Justice Kurian Joseph was not in the Bench that dealt with the original petition, he was only in the Bench that took up the Review Petition.) Justice Kurian Joseph's contention is both substantively and technically incorrect, enabling, albeit unintentionally, a tragic abuse of the judicial process.

Consequently, the case is being referred to a larger Bench. Division Bench consisting of two judges has of late become dysfunctional leading to dilatoriness because of contradictory views of two judges. A fair judicial system needs to ensure that proven criminals do not enjoy some imaginary rights at the cost of natural justice to the victims. No judge, howsoever enthusiastic or rebellious, has a right to torpedo this salient principle.

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